AZHARI LLC BLOG

Jan. 11 2019

You Can Face US Charges If You Make Illegal Porn in Another Country

Posted By: Sami Azhari

You Can Face US Charges If You Make Illegal Porn in Another Country

According to the US Sentencing Commission, “Congress has been particularly active over the last decade creating new offenses, increasing penalties, and issuing directives to the Commission regarding child pornography offenses.”

Part of the rationale for increased child pornography penalties is driven by the concern that offenders are more likely to commit sexual abuse against children. While this is not always the case, there have been situations in which it is true.

Last summer, for example, the Brownsville Herald reported on a Guatemalan man accused of traveling from Nebraska to Guatemala to engage in sexually explicit conduct with a minor. While there, he allegedly filmed that conduct and then conspired to smuggle the minor into the US over the Texas border through a place other than a designated port of entry.

The US federal magistrate judge overseeing the case ruled the suspect be held without bond pending trial due to lack of verifiable employment, his extensive family ties in Guatemala, and the nature of the charges.

Despite the fact that none of the charges are related to criminal acts that actually took place on US soil, the man now faces indictment on eight separate counts, which allege he produced child pornography of the sexual acts with the minor on a cellphone and conspired to smuggle the child into the United States.

In this post, we’re going to use this case to demonstrate how child pornography charges work when sex crimes like this cross international borders. If you find any similarities to your personal circumstances, you may find it helpful to discuss the situation with an attorney with a proven track record in fighting child pornography charges.

How Child Pornography Is Defined

Quite simply, child Pornography is any visual depiction of sexually explicit conduct involving a minor.

Visual depictions include photographs, videos, digital or computer-generated images indistinguishable from an actual minor, and images created, adapted, or modified that appear to depict an actual, identifiable minor.

Undeveloped film, undeveloped videotape, and electronically stored data that can be converted into a visual image of child pornography are also deemed illegal visual depictions under federal law.

Regardless of state laws on the legal age of consent and marriage, at a federal level, any depiction of a minor under 18 years of age engaging in sexually explicit conduct is illegal.

Producing Child Porn with the Intent to Import into the US

Chicago Child Pornography Defense Lawyer

One count against the suspect in our example case charges him both with possession of child pornography (because he possessed the cellphone containing the explicit images), and with transportation of child pornography (since he carried the phone that would later store the child pornography during his travels from the US to Guatemala, where these crimes allegedly took place).

Section 2260 of Title 18, United States Code, prohibits any persons outside of the United States to knowingly produce, receive, transport, ship, or distribute child pornography with the intent to import or transmit the visual depiction to the United States.

Because today’s standard is so strict, even a small connection made in matters of child pornography tends to be pursued to the full extent of child pornography law. Even if the pornographic material itself did not travel across state or international borders, if the materials used in the transfer (such as the cellphone in this case), originated in or up to the time of the incident moved across borders, federal laws can be (and are) implicated.

Where Sexual Exploitation of a Child Fits In

It is illegal in this country to influence, encourage, entice or pressure a minor to participate in sexually explicit behavior for purposes of producing pornographic material (i.e., sexual exploitation of a child). Even when the offender does not successfully create the material, any attempt to violate the law may be considered an offense.

The suspect was charged with this crime as well because he allegedly persuaded the minor victim to engage in sexual conduct and intercourse while in Guatemala for the purpose of producing a visual depiction.

Illicit Sexual Conduct in Foreign Places

This is perhaps the most directly applicable charge in this sample case. Under Title 18, US Code, any united states citizen or alien admitted for permanent residence who travels in foreign commerce or resides, either temporarily or permanently, in a foreign country, and engages in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both.

The indictment states that the Guatemalan-born man is a legal permanent resident in this country, and so has been charged with engaging in illicit sexual conduct in foreign places by traveling from Nebraska specifically to engage in illicit sexual conduct with the minor in question.

Possible Penalties Associated with These Types of Child Pornography Charges

Between 1987 and 2009, Congress revised the guidelines on child pornography sentencing nine times, and each time the changes resulted in longer sentences for conviction.

Currently, first-time offenders convicted of producing child pornography face fines and a mandatory minimum of 15 years to 30 years in prison, and first-time offenders convicted of transporting child pornography in interstate or foreign commerce faces fines and a mandatory minimum of 5-20 years in prison.

The case in question alleges that the man engaged in sexually explicit conduct with a minor and filmed it. There is currently no public record of any prior offense, so for the purposes of this article, we’ll assume he is a first-time offender.

However, there is also a possibility the act can be classified as sexual abuse of a minor, which would qualify as an “aggravated situation.” In these circumstances, as a convicted offender, this Guatemalan-born legal resident could face up to life incarceration in a US prison for crimes committed in his home country.

Possible Penalties Associated with Types of Child Pornography Charges

An offender can also be prosecuted under state child pornography laws in addition to federal law. This can occur without violating double jeopardy prohibitions because state laws can vary from federal laws. So, once all is said and done on this federal case, the man could face further prosecution at the state level – and in a couple of different states.

The takeaway? No matter where you engage in illicit sexual behavior, you can face punishment – and incredibly serious punishment at that – in our country.

 

About the Author

Sami Azhari has been working as a lawyer since 2007, after receiving his Juris Doctor from the Michigan State University College of Law. He has handled numerous state and federal cases, and is known throughout the Chicago and Rolling Meadows area for providing his clients with high-quality, skilled representation. He has been recognized by SuperLawyers, the National Trial Lawyers Association, and other notable organizations, and has spoken at a number of legal conferences.